Identity or Condition? the Theory and Practice of Applying State Disability Laws to Transgender Individuals

Chung, Jeannie J., Columbia Journal of Gender and Law

Jean Doe was a 17-year-old transgender youth when she brought suit against the New York City Administration for Children's Services in New York Supreme Court. (1) She had been in and out of foster homes since the age of nine, and had a troubled history of "violent altercations" in many of the foster homes in which she had been placed throughout these years. (2) Her latest placement was in the Atlantic Transitional Foster Facility, an all-male facility for short-term placement of foster children who are in the care of New York City's Administration for Children's Services. (3) Upon her arrival at Atlantic Transitional, the director of the facility expressly prohibited her from expressing her gender identity by wearing "female attire," although she still could wear "scarves, 'nails,' brassieres, and enhancers." (4) When Jean Doe moved for a preliminary injunction, Atlantic Transitional tried to avoid liability by broadening its policy's reach to the rest of the facility, forbidding all residents from wearing skirts or dresses. (5) Undeterred, Doe brought a lawsuit against the facility, alleging gender discrimination, violations of her First Amendment to free expression, and disability discrimination. (6) The court ultimately found for Doe solely on the disability discrimination claim and mentioned nothing about the other two claims in its opinion. (7)

Doe v. Bell is illustrative of the difficulties transgender advocates have had in bringing gender discrimination claims on behalf of their clients, as well as their relative success in using state disability anti-discrimination laws to garner protection for their clients. Cases that recognize gender discrimination laws as inclusive of transgender individuals, have changed the legal landscape for transgender individuals, such as the recent D.C. Circuit case of Schroer v. Billington, which held that a transgender plaintiff had been discriminated against in employment on the basis of sex under Title VII of the 1964 Civil Rights Act. (8) In many cases over the past two decades, advocates have demonstrated the efficacy of state disability antidiscrimination claims as applied to transgender individuals. Although federal law expressly excludes transgender individuals from the protected class of persons with disabilities, (9) many states do not follow suit. Moreover, at least one State court used the federal exclusion to show that the absence of this exclusion in that State's disability laws clearly demonstrated the State legislature's intent to actively include transgender individuals under these laws. (10)

Unsurprisingly, the use of state disability antidiscrimination laws to claim protection for transgender individuals has been controversial. (11) Some transgender advocates, have noted that the word "disability" often invokes images based on medically-centered views of disabled people in which an individual's "disability" is an illness to be cured. (12) They further point out that the modem disability rights movement has instead embraced a social model of disability, in which "disability" is not inherent to the individual person, but. arises from an environment that assumes only able-bodied people live in it. (13) These advocates look favorably upon the social model of disability and believe that it should be applied to claims involving disability discrimination against transgender individuals. (14)

Other transgender advocates who oppose the medicalization of transgender identity worry that the use of state disability laws as applied to transgender discrimination cases might perpetuate a problematic reliance on medicalization to exercise legal rights and protections for transgender individuals. (15) While these advocates also support a social model of disability, they recognize that courts by and large have rejected an application of the social model of disability to transgender individuals, instead focusing heavily on medical constructions of transgender identity to decide transgender discrimination cases brought under state disability laws. …

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